The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-02-02
SUPREME COURT CASES
asperted for The Clarion BY W. r. Harper
Attorney-at-L.~, Jackson, Mics
october Term-Isse.
FRANZ MCNULTY, !

FRANK MCNULTY,
C.. L. WALKER
Appeal from the Circuit Court of Clay
county. Hon. w. NJ. Rogers, Judge.
Rarry & Beckett, for the appellant
Fred Beall, for the appellee.
Frank McNulty made an affidavit
against G. X. Walker and one Brasstield,
charging them with stealing his hog.
They were arrested and tried and
Walker was discharged. Thereupon he
brought this action against McNuity
for malicious prosecution.
The evidence shows that McNulty
had both tame and wild hogs; that he
had lost several of these hogs; that he
had authorized one ]. B. Walker and
Brassfield TO kill his wild hogs on shares;
that on or about April IL, 1888, he was
informed by one Vail that &. h. Walker
and Brassfield were killing his hogs
without making a division, as he, Vail,
was informed by the McGees; that he,
McNulty, in company with several
others, went to see the Notices, who
said to them, that about February 20,
1888, c. K. Walker came to see them
and said 10 them, 81 have some wild
hogs up in my brothers pen in the
bottom, and | want you to help spey
Them" and after dinner they went to
the hog pen; that after they got there
Brassfeld came riding up with gear on
his mule, and they, McGees, asked what
it meant; that Walker called to Brass
field and asked him if he had seen Nc
Nulty, and Brasstield answered that he
had, that McNulty described the hog to
st." and said it was his and that
Walker and Brassfeld could have it;
that thereupon the McGees assisted
Brassield and Walker to kill the hog
which belonged to McNulty; that Brass
| field carried it off, Walker following in
the same direction.
McNulty and Vail next went to see
Brass6eld, and they asked him if he had
seem any of McNulty's hogs, and he
said he had not, and he further said
that he and @. X. Walker had not been
in the bottom at all.
| Thereupon McNulty went before a
justice and made the above affidavit.
| The defendant, McNulty, asked the
court to instruct the jury, peremptorily
to find for him. The court refused tc
do this. The jury found for the plain.
tiff, and assessed his damages at one
dollar, and the court taxed the costs on
the defendant. The defendant appealed
ARNOLD, j., delivered the opinion Of
the Court.
| The verdict was manifestly wrong
and the instruction asked by appellant
to the effect that the jury should fine
for him, should have been given. II
an action for malicious prosecution, il
is essential for the plaintiff to show that
the prosecution complained of was in
stituted with malice, and without prob
able cause. Hence the proof, by uncon
tradicted testimony of probable cause
that is to say, of such state of facts as
would ordinarily be sufficient to produce
a reasonably belief that the party
charged was guilty, is abundant.
1t is not disputed that appellants hog
was killed by appellee and Brassfeld
nor that appellant was told by Vail that
he had been informed by the McGees
that they had seen appellee and Brass
| field kill the hog, nor that afterward
and before the appellant made affidavit
for the arrest, he went to Brassield and
made inquiry in regard to the matter
and that he denied that he and appellee
had been in the bottom or seen appel
lant's hogs.
What constitutes probable cause, OIL
whether there was probable cause fol
the prosecution, is generally mixed
question of law and fact, but if the
facts are undisputed, it then becomes 8
question of law to be determined by
the court. Greenwood v. Mills, 81 Miss.
AGA. Whitfield v. Westbrook, 40 ID.
81. Cooley on Torts, ISL.
In this view of the law and the facts
the Judgment is reversed and cause re-
manded without considering other errors
assigned.